111 Minn. 522 | Minn. | 1910
Action in the municipal court of the city of Minneapolis to recover possession of certain personal property, in which defendant had judgment, and plaintiff appealed.
The facts are as follows: One Barnidge purchased the property in question of Boutell Bros, under a written contract, the terms of which provided that title thereto should remain in the vendors, Boutell Bros., until the purchase price was fully paid. The purchase
The principal question involved in the case centers around the Mihalopolis mortgage. It is contended by plaintiff that the mortgage was an absolute nullity: First, because Mihalopolis had no title
The authorities hold, in actions involving contracts of this character, that though the legal title remains in the vendor, and the vendee is expressly forbidden to sell or transfer the same without the consent of the vendor, an equitable title or interest passes to the vendee, which he may deal with at will, subject, of course, to the rights of the vendor. An equitable title is a right possessed by a person to have the legal title to property transferred to him upon the performance of specified conditions. That this right existed under the contract here before the court cannot be questioned. The original sale ■of the property, or, more properly speaking, perhaps, the agreement of sale, was to Barnidge, who transferred his right to Mihalopolis, with the express consent of the vendor. Under the terms of the ■contract the vendee had the right to have the legal title transferred to him upon payment of the purchase price. His assignee, Mihalo•polis, had the same right. And, moreover, the right of sale is by the contract in question expressly recognized; the only restriction to the exercise thereof being that the vendor’s written consent shall be •obtained. Mihalopolis, therefore, had an equitable interest in the nature of a title which he could convey, and his mortgage to Barnidge was valid, unless rendered invalid by the absence of written consent to its execution, by Boutell Bros. 2 Schouler, Personal Property, 302; 35 Cyc. 668, and cases cited.
The clause in the sales contract, relied upon to sustain the claim that the- Mihalopolis mortgage was a nullity, provides that the .purchaser shall not sell, assign, or transfer the contract, or the property
2. There can be no serious question respecting the rightfulness of defendant’s possession. Mihalopolis had abandoned the property, and the defendant, holder of the mortgage thereon, had the lawful right to take possession of the same in the protection of his interests under the mortgage. At the time plaintiff made his demand, he possessed only the title of Mihalopolis, the mortgagor, and occupied no better position than his grantor. Tie made no offer, when demanding the property, to pay the mortgage indebtedness, and without discharging the debt he could not lawfully deprive the mortgagee of his right of possession for the purpose of foreclosing the mortgage. Plaintiff did not become the owner of the Boutell contract until after he demanded the property of defendant, and he cannot be heard to assert that the demand for possession was valid because he subsequently acquired a superior right to the property.
Judgment affirmed.